A Source for FMLA Guidance: The Return of the Opinion Letter

The United States Department of Labor (DOL) recently announced its Wage and Hour Division (WHD) is reinstating its practice of issuing opinion letters with respect to the application of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Generally, the FLSA establishes minimum wage, overtime, recordkeeping and employment standards, and the FMLA makes unpaid leave available to certain eligible employees upon the occurrence of certain family events (i.e., birth or adoption of a child, care of a child, spouse or parent with a serious health condition, or a serious health condition of the employee).

An issue that often arises in connection with unpaid FMLA leave is the continuation of the employee’s group health plan coverage. Thus, while the application and interpretation of the FLSA and FMLA are important to all human resource departments, this blog will focus on FMLA opinion letters with a view that such guidance may assist in the administration of group health plans.

Significantly, a review of the existing FMLA opinion letters indicates that the last FMLA opinion letter was issued on January 6, 2009. Further, this review indicates that the last FMLA opinion letters relating to coverage under group health plans were issued in 2006. Given the number of post-2006 statutory and regulatory changes impacting group health plans (including the Affordable Care Act), the opinion letter program may be a valuable resource for additional FMLA guidance. A review of the existing FMLA opinion letters provides some guidance as to the types of issues which may be addressed in a request for an FMLA opinion letter.

For example, in FMLA2006-6-A (October 5, 2006), a school district and the union representing certain school district employees requested guidance as to whether a group dental plan constituted a “group health plan” whose coverage must be maintained during FMLA leave. This opinion letter held that (1) the group dental plan was a “group health plan;” (2) the group dental plan did not qualify for the exception from FMLA coverage for certain employee individual policies; and (3) “the school district is required to maintain coverage under the group dental plan for employees on FMLA leave as though the employees were continuously employed during the period of FMLA leave.”

Likewise, in FMLA2006-3-A (January 31, 2006), a City and the union representing certain City employees requested guidance as to the application of the FMLA to a “cafeteria plan.” In that case, the City allocated a monthly contribution to each employee under a cafeteria plan. From this monthly contribution, each employee had to pay the premium for group health coverage with the balance of the allocation being used, at the employee’s option, for other welfare benefits. The opinion letter held that “employees taking unpaid FMLA leave must have that portion of the cafeteria plan allotment allocated to group health insurance (including dental) premiums paid by the City in the same amount as paid prior to the start of FMLA leave.”

A request for an opinion letter should include: (1) an identification of the applicable statute and regulations; (2) a description of the relevant facts; (3) the representations regarding investigations and litigation (described below); (4) the requestor’s email address; (5) a telephone number to be used by the WHD to contact the requester, if necessary, to discuss the request; and (6) the requester’s signature (if submitted via mail).  The request can be submitted by mail to the WHD office in Washington, D.C. or via email at WHDopinionletters@dol.gov.

There are a number of potential limitations to pursuing an FMLA opinion letter. First, the opinion letter is based exclusively on the facts and circumstances contained in the request. In other words, the opinion letter is based on the representation by the party seeking the opinion letter that such party has provided a full and fair description of all of the applicable facts and circumstances. The omission or mischaracterization of an applicable fact or circumstance may limit the validity of the opinion letter.

Second, it is important to note that an FMLA opinion letter should be pursued in connection with the employer’s prospective administration of its FMLA program or its group health plans.  The FMLA opinion letter program is not a vehicle for resolving a DOL investigation or private litigation. Significantly, in the opinion letter request, the party seeking the opinion letter is required to represent that the “opinion is not sought by a party to pending private litigation concerning the issue” being addressed. Likewise, the party seeking the opinion letter is required to represent that the opinion is not sought in connection with an investigation or litigation between a person and the WHD.

Third, at this time, there is an absence of information concerning the time that will be involved in obtaining an FMLA opinion letter. Unfortunately, processing time is a factor that employers often cite as a reason for not pursuing advance guidance from governmental agencies. If the opinion letter processing time becomes overly lengthy, employers may not request opinion letters and the benefits of the opinion letter program may be limited.

In summary, the WHD has recently re-opened the opinion letter program for guidance relating to the interpretation of the FLSA and FMLA. This program may be a good resource for employers in connection with the administration of their group health plans (as impacted by FMLA leave). While this blog focuses on the employee benefits/group health plan aspects for FMLA guidance, the WHD opinion letter program provides guidance with respect to the application of the FLSA and the FMLA which impacts a host of employment issues which are much broader than the issues discussed herein.

About the Author

Jonathan H. Nason
Jon is a tax lawyer who advises employers on the design, implementation and administration of employee benefit plans, including ERISA and HIPAA compliance.